186 F.3d 183 (2nd Cir.

1999)

GITTEL GORDON, Plaintiff-Counter-Defendant-AppellantCross-Appellee,

v.
MATTHEW BENDER & COMPANY, INC., DefendantCounter-Claimant-Appellee-Cross-Appellant.
Docket Nos. 98-9115, 98-9155
No. 1793--August Term, 1998

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT
Argued: June 21, 1999
Decided: July 27, 1999

Appeals from a judgment entered following a jury trial in the United

States District Court for the Southern District of New York (Baer, J.).
Affirmed in part, vacated in part, and remanded.
JAMES V. JORDAN, Santa Monica, CA (Appellate Resources Group, on
the brief), for Plaintiff-Counter-Defendant-Appellant-Cross-Appellee.
MITCHELL A. KARLAN, New York, NY (Marshall R. King, Thomas C.
Sheehan, Gibson, Dunn & Crutcher LLP, on the brief), for DefendantCounter-Claimant-Appellee-Cross-Appellant.
Before: MINER, JACOBS, and PARKER, Circuit Judges.
PER CURIAM:

Gittel Gordon entered into two contracts with publisher Matthew Bender &
Co., Inc., under which she agreed to write and update two immigration law
treatises. The first contract, dated August 15, 1980, required Gordon to edit and
update a one-volume desk edition of an immigration law treatise (the "Desk
Edition"). The second contract, dated May 19, 1983, required Gordon to write
and update a two-volume treatise intended for use by practicing immigration
lawyers (the "Practice Volumes"). Bender terminated Gordon's contracts on

May 30, 1995 for, inter alia, failing to meet Bender's deadlines and performance
requirements. Gordon sued Bender for breach of contract seeking lost royalties.
The jury awarded Gordon $360,000 on her Desk Edition claim, but found in
favor of Bender on her Practice Volumes claim. The district court entered
judgment on October 15, 1997, and two weeks later amended that judgment to
include pre-judgment interest on the entire damages award.
2

Bender moved for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a)
on the Desk Edition claim, and pursuant to Fed. R. Civ. P. 59(e) to amend the
amended judgment to exclude pre-judgment interest. Gordon cross-moved
pursuant to Rule 50(a) on the Practice Volumes claim, and alternatively for a
new trial pursuant to Rule 59(a). In an opinion and order dated July 21, 1998,
the United States District Court for the Southern District of New York (Baer,
J.) denied each motion. See Gordon v. Matthew Bender & Co., No. 96 Civ.
4269, 1998 WL 414931 (S.D.N.Y. July 22, 1998). These appeals followed.
A. The Practice Volumes Claim

We review the district court's denial of Gordon's Rule 50(a) motion de novo,
and will reverse the denial of judgment as a matter of law "only if,
notwithstanding making all credibility assessments and drawing all inferences
in favor of [Bender], a reasonable juror would be compelled to accept the view
of [Gordon]." See EEOC v. Ethan Allen, Inc., 44 F.3d 116, 119 (2d Cir. 1994).

Bender adduced evidence that it rejected one of Gordon's submissions of

supplemental materials (Release 63), and argues that under clause 3 of the
Practice Volumes contract, the contract was therefore terminated. Clause 3
provides: "In the event that Bender shall reject such manuscript or other
material, this agreement shall be deemed to have been terminated." (Emphasis
added). Gordon argues that clause 5 of the Practice Volumes contract (not
clause 3) governs supplemental materials, and unambiguously requires that
Bender reject two consecutive submissions of supplemental materials before it
could terminate the contract. Clause 5 provides:

If the Author shall fail, for any reason whatsoever, to prepare the upkeep
service for his treatise for two consecutive releases, his right to prepare the
upkeep service shall cease and Bender shall have the right to have all future
supplements and revisions for the treatise prepared by others.

It is undisputed that Bender timely rejected only one supplemental submission;

however, Gordon's reading of the contract is not the only possible reading of

clause 5.
7

One perfectly sound understanding of the parties' intent is that clause 5 applies
to Gordon's failure to submit supplements or revisions, while clause 3 applies to
Bender's rejections of inadequate material (i.e., supplements, revisions, or
manuscript treatises). Since (at least) one set of supplemental materials-Release 63--was duly rejected, the jury could find that Bender properly
exercised its contractual right to terminate the Practice Volumes contract.

Gordon also argues that Bender was precluded from terminating the contract,
because Bender continued to accept performance under the contract after
breach. However, even if the jury concluded that Bender initially elected not to
terminate the contract pursuant to clause 3, the jury could have found -under the
charge that was given, and as to which Gordon did not object -that Gordon was
subsequently in material breach by turning in substandard work and by failing
to meet deadlines, a state of affairs that forced Bender to hire other authors and
editors. See Lavoie v. Pacific Press & Shear Co., 975 F.2d 48, 55 (2d Cir. 1992)
("[L]itigants do not get another opportunity to assign as error an allegedly
incorrect charge simply because the jury's verdict comports with the trial
court's instructions."); cf. Apex Pool Equip. Corp. v. Lee, 419 F.2d 556, 562-63
(2d Cir. 1969) (an election not to terminate the contract for a specific breach
does not waive the right to terminate the contract for succeeding breaches). The
jury instruction given was not plain or fundamental error, and in any event,
there was sufficient evidence for a reasonable jury to find in favor of Bender on
the Practice Volumes claim. The denial of Gordon's Rule 59(e) motion was not
an abuse of discretion. See McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir.
1983) (per curiam).
B. The Desk Edition Claim

The district court denied Bender's Rule 50(a) motion on Gordon's Desk Edition
claim on the ground that "[t]he jury quite reasonably could have determined
that Gordon fully performed her contractual obligations pursuant to the Desk
Edition agreement." We agree.

10

Bender argues that it had the right to terminate the contract because revisions to
the Desk Edition demanded by Bender's January 4, 1993 letter to Gordon were
never made. Testimony on that subject was arguably in conflict. Gordon's
editors at Bender testified that she did not make the required revisions. Gordon
testified generally that she "updated [the] book from 1980 until 1995 when I
was terminated . . . [a]t every date that they gave me to update it, I updated it

and revised it." The jury was entitled to resolve this conflicting testimony in
favor of Gordon. See This Is Me, Inc. v. Taylor, 157 F.3d 139, 142 (2d Cir.
1998) (in deciding a Rule 50(a) motion, the district court is not permitted to
"weigh[] the credibility of the witnesses or otherwise consider[] the weight of
the evidence" (internal quotation marks omitted)).
C. Pre-judgment Interest
11

The October 13, 1997, judgment in favor of Gordon on the Desk Edition claim
was entered in the amount of $360,000. On October 29, 1997, the district court
sua sponte entered an amended judgment awarding pre-judgment interest on the
entire damages award. Bender's Rule 59(e) motion to amend the amended
judgment and reinstate the original judgment was denied by an order of the
district court entered on July 22, 1998. We conclude that the district court erred
in awarding pre-judgment interest on an award that likely included both prejudgment and post-judgment damages.

12

Two years intervened between the breach and the entry of judgment. According
to the testimony of Gordon's expert, Gordon earned an average of $30,860 per
year in royalties on the Desk Edition contract. Bender argues therefore that
$72,965 (at most) of the $360,000 judgment was attributable to pre-judgment
losses, and that the district court abused its discretion in awarding Gordon prejudgment interest on the entire award. We agree.

13

"The purpose of a prejudgment interest award . . . is to compensate a plaintiff

for the loss of use of money...." Chandler v. Bombardier Capital, Inc., 44 F.3d
80, 83 (2d Cir. 1994). Consequently, "an award of pre-judgment interest is not
appropriate with respect to an award of damages for future losses... and if there
[is] a reasonable basis for inferring that part of the jury's award sought to
compensate for future losses,... the district court [should] determine what
portion of the award should be attributed to each category of loss." Gierlinger v.
Gleason, 160 F.3d 858, 875 (2d Cir. 1998) (internal citations omitted).

14

As the testimony of Gordon's own expert demonstrates, it is likely that the

award of pre-judgment interest is excessive in this case because the $360,000
award probably included both pre-judgment and discounted post-judgment
losses. We therefore remand for a determination as to the amount of the award
attributable to pre-judgment losses, and for the award of pre-judgment interest
on that portion of the award only.

15

***

16

The judgment of the district court is affirmed as to the Practice Volumes and
Desk Edition claims. The award of pre-judgment interest on the entire $360,000
award is vacated, and we remand for recalculation of the interest award on only
pre-judgment losses.